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TAM-BYTES

August 15, 2016


Vol. 19, No. 33
TAM Webinars
Business Formations in Tennessee: Incorporate or Not?, 60-minute
webinar presented by Rachel Schaffer Lawson, with Schaffer Law Firm in
Nashville, on Wednesday, September 14, at 2 p.m. (Central), 3 p.m.
(Eastern).
*Earn 1 hour of GENERAL credit
TennCare: Tips and Traps for Tennessee Elder Law and Estate
Planning Attorneys, 60-minute webinar presented by Amelia Crotwell,
with Elder Law of East Tennessee in Knoxville, on Tuesday, September 20,
at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Your Clients New Overtime Challenges: Compliance and Risk
Assessment Counsel Tips, 60-minute webinar presented by Kara Shea
and Brent Siler, with Butler Snow, on Wednesday, September 21, at 2
p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

TAM On-Site Events


Personal Injury Law Conference for Tennessee Attorneys
WHEN: Friday, September 23
WHERE: Nashville Nashville School of Law
CLE: Earn up to 7.5 hours of CLE (6.5 GENERAL and 1 DUAL)
FACULTY: Judge Don R. Ash, Tennessee Senior Judge; Edward U. (Ned) Babb,
Butler, Vines and Babb, PLLC, Knoxville; Laura Baker, Law Offices of John Day PC,
Brentwood; Brandon Bass, Law Offices of John Day PC, Brentwood; Daniel Clayton,
Kinnard, Clayton & Beveridge, Nashville; Chuck Mangelsdorf, MGC Insurance
Defense, Nashville; J. Bryan Moseley, Moseley & Moseley, Murfreesboro; and T.
Kenan Smith, Hodges, Doughty & Carson, PLLC, Knoxville

HIGHLIGHTS: How West v. Shelby County Healthcare impacts medical damages;


negotiating with insurance adjusters; proving medical bills in a personal injury case;
Medicare set-aside allocations, approvals, and administration; truck accident litigation
trial strategies for both the plaintiff and the defense; best practices in uninsured motorist
cases; voir dire -- first impressions, team building, and primary objectives; review of
recent personal injury cases; and dealing with a judge who is acting unethically.

For more information or to register call us at (800) 274-6774 or visit


www.mleesmith.com/tn-personal-injury-law
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Family Law Conference for Tennessee Practitioners


WHEN: Thursday & Friday, October 6-7
Thursday & Friday, December 1-2
WHERE: Nashville Nashville School of Law
CLE: Earn up to 15 hours of CLE (12 GENERAL and 3 DUAL)
OCTOBER FACULTY: Sandy Garrett, Chief Disciplinary Counsel, Board of
Professional Responsibility; Barry Gold, McWilliams & Gold, Chattanooga; James
(Jimmy) D. Helton, II, Helton Law Office, Brentwood; Judge Jeff Hollingsworth,
circuit court, Hamilton County; Stanley A. Kweller, Jackson, Kweller, McKinney,
Hayes, Lewis & Garrett, Nashville; Brent Lankford, Stites & Harbison PLLC,
Nashville; Jeff Levy, Nashville attorney; Sean J. Martin, Martin Heller Potempa &
Sheppard, Nashville; Chancellor Larry McMillan, chancery court, 19th Judicial District
(Montgomery and Robertson counties); Marlene Moses, MTR Family Law, PLLC,
Nashville; Kevin Shepherd, Maryville attorney; Judge Keith Siskin, circuit court, 16th
Judicial District (Cannon and Rutherford counties); Greg Smith, Stites & Harbison
PLLC, Nashville; and Judge Thomas Wright, circuit court, 3rd Judicial District (Greene,
Hamblen, Hancock, and Hawkins counties)

DECEMBER FACULTY: Amy J. Amundsen, Rice, Amundsen & Caperton


PLLC, Memphis; Judge Joe Binkley, circuit court, Davidson County; Judge Robert L.
Childers, circuit court, Shelby County; J. Todd Faulkner, Law Office of J. Todd
Faulkner, Nashville; Barry Gold, McWilliams & Gold, Chattanooga; James (Jimmy) D.
Helton, II, Helton Law Office, Brentwood; Candi Henry, Dodson Parker Behm &
Capparella PC, Nashville; Sean J. Martin, Martin Heller Potempa & Sheppard,
Nashville; Judge Phillip Robinson, circuit court, Davidson County; Kevin Shepherd,
Maryville attorney; Greg Smith, Stites & Harbison PLLC, Nashville; Eileen Burkhalter
Smith, Disciplinary Counsel, Board of Professional Responsibility; and Judge Joseph
Woodruff, circuit court, 21st Judicial District (Hickman, Lewis, Perry, and Williamson
counties).

HIGHLIGHTS: Protecting a clients separate assets; dividing marital property;


technology for the family law practitioner; retirement plans and QDROs; practical tips
from judges across the state; spousal/child support awarding, modifying, or

terminating; e-discovery and social media in divorce; child custody, visitation, and
relocation; contract law for family lawyers; civil and criminal contempt in family matters;
case law/legislative update; ethics and professionalism in family law practice; and
attorneys ethical use of social media.

For more information or to register call us at (800) 274-6774 or visit


www.mleesmith.com/family-law-2016
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Tennessee Real Estate Law Conference


WHEN: Friday, October 14
WHERE: Nashville Nashville School of Law
CLE: Earn up to 7.5 hours of CLE (6.5 GENERAL and 1 DUAL)
FACULTY: T. Kevin Bruce, Hagler Bruce & Turner, Memphis; Griffin Dunham,
Dunham Hildebrand, Nashville; Matthew Ellis, Batson Nolan, Clarksville; Pete Ezell,
Baker, Donelson, Bearman, Caldwell & Berkowitz, Nashville; David Wilson Long,
Long, Ragsdale & Waters, Knoxville; Kirk Moser, Old Republic National Title
Insurance Company, Nashville; Scott Thomas, Bass, Berry & Sims, Nashville; and Wes
Turner, Gullett Sanford, Robinson & Martin, Nashville.

HIGHLIGHTS: Special considerations for commercial and investment transactions,


including 1031 exchanges; opinion letters in real estate transactions; hot topics in title
insurance; TILA-RESPA issues, including new requirements and necessary information;
the effect of bankruptcy on commercial and residential real estate; environmental issues
in real estate transactions; ethical considerations in real estate law; and real estate case
law/legislative update.

For more information or to register call us at (800) 274-6774 or visit


www.mleesmith.com/tn-real-estate-2016
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Probate & Estate Planning Conference for Tennessee Attorneys


WHEN: Thursday & Friday, October 20-21
Thursday & Friday, December 8-9
WHERE: Nashville Nashville School of Law
CLE: Earn up to 15 hours of CLE (12 GENERAL and 3 DUAL)
OCTOBER FACULTY: William (Will) Bell, Jr., Rainey, Kizer, Reviere & Bell
PLC, Jackson; Rebecca Blair, The Blair Law Firm, Brentwood; David Callahan,
Goodman Callahan & Blackstone, PLLC, Nashville; Michael W. Dale, Harvill Ross
Hogan and Ragland, Clarksville; Harlan Dodson, Dodson, Parker, Behm & Capparella
P.C., Nashville; Donald J. Farinato, Hodges, Doughty & Carson, PLLC, Knoxville;

Glen Kyle, Monica Franklin & Associates, LLC, Knoxville; Carla Lovell, Sherrard Roe
Voight & Harbison, PLC, Nashville; Barbara Boone McGinnis, Elder Law Practice of
Timothy L. Takacs, Hendersonville; Hunter R. Mobley, Howard Mobley Hayes &
Gontarek, PLLC, Nashville; Jeff Mobley, Howard Mobley Hayes & Gontarek, PLLC,
Nashville; Julie Travis Moss, The Blair Law Firm, Brentwood; Michelle Poss, Sobel,
Poss & Moore, Nashville; and M. Matthew Thornton, Bourland, Heflin, Alvarez, Minor
& Matthews, PLC, Memphis.

DECEMBER FACULTY: William (Will) Bell, Jr., Rainey, Kizer, Reviere & Bell
PLC, Jackson; Rebecca Blair, The Blair Law Firm, Brentwood; David Callahan,
Goodman Callahan & Blackstone, PLLC, Nashville; Harlan Dodson, Dodson, Parker,
Behm & Capparella P.C., Nashville; Donald J. Farinato, Hodges, Doughty & Carson,
PLLC, Knoxville; Glen Kyle, Monica Franklin & Associates, LLC, Knoxville; Ralph
Levy, Jr., Dickinson Wright PLLC, Nashville; Carla Lovell, Sherrard Roe Voight &
Harbison, PLC, Nashville; Hunter R. Mobley, Howard Mobley Hayes & Gontarek,
PLLC, Nashville; Jeff Mobley, Howard Mobley Hayes & Gontarek, PLLC, Nashville;
Julie Travis Moss, The Blair Law Firm, Brentwood; Michelle Poss, Sobel, Poss &
Moore, Nashville; Timothy L. Takacs, CELA, Elder Law Practice of Timothy L.
Takacs, Hendersonville; and M. Matthew Thornton, Bourland, Heflin, Alvarez, Minor
& Matthews, PLC, Memphis.

HIGHLIGHTS: Use of various trusts as estate planning tools; tips for drafting wills
in 2016; trust drafting tips with samples; duties and liabilities of fiduciaries; structuring
marital agreements to deal with estate planning issues; what to look for in reviewing
existing estate plans; business succession planning; qualifying for TennCare; alternatives
to full probate administration; planning for a clients long-term care; tips for probating a
will and administering estates; planning for digital assets; probate litigation case law and
legislative update; ethical issues facing trust and estate planning attorneys; and ethics in
elder care.

For more information or to register call us at (800) 274-6774 or visit


www.mleesmith.com/probate
************************************************************

Tennessee Workers Comp Conference


WHEN: November 9, 10, & 11
Wednesday afternoon, Thursday (all day), & Friday (morning),
WHERE: Franklin Embassy SuitesNashville South/Cool Springs
CLE: Earn up to 15 hours of CLE (14 GENERAL and 1 DUAL)
On Thursday, attendees may choose to attend a track designed for attorneys or one
designed for employers and others or you may mix the tracks to better serve your
needs. You get an interactive program, including panel discussions the speakers
welcome your questions and feedback.

FACULTY: WORKERS COMP JUDGES: Judge Tim Conner; Judge Pamela


Johnson; and Chief Judge Ken Switzer. TENNESSEE BUREAU OF WORKERS
COMPENSATION: Troy Haley; Brian Holmes; and Robert B. Snyder, M.D.
WORKERS COMP/EMPLOYMENT LAW ATTORNEYS: Mary Dee Allen, Wimberly
Lawson Wright Daves & Jones PLLC; Fred Baker, Wimberly Lawson Wright Daves &
Jones PLLC ; Leslie Bishop, Lewis, Thomason, King, Krieg, & Waldrop, P.C.; Kitty
Boyte, Constangy, Brooks, Smith & Prophete, LLP; Adrienne B. Fazio, Manier &
Herod; T. Joseph Lynch, III, Wimberly Lawson Wright Daves & Jones PLLC;
Marshall McClarnon, Ponce Law; Stacie D. Miller, Arnett, Draper & Hagood, LLP;
Jessica Housch Silinsky, Carr Allison; and Kenneth D. Veit, Leitner, Williams, Dooley
& Napolitan PLLC. EMPLOYMENT LAW ATTORNEY: Greg Grisham, Ford &
Harrison LLP. OTHERS: Dr. Jeffrey Hazlewood, Board Certified in Physical Medicine
and Rehabilitation, subspecialty Board Certification in Pain Medicine and Dawn TrojanRandle, Claim Specialist at Brentwood Services.

HIGHLIGHTS: Youll hear from Chief Judge Ken Switzer and Judge Pam Johnson,
with the Court of Workers Compensation Claims, as well as Judges Tim Conner and
Marshall Davidson of the Workers Compensation Appeals Board; youll gain insight on
causation issues under the new law from a panel of attorneys and physicians, hear about
when it is appropriate to terminate an employee who has filed a workers comp claim,
and receive a comparison of how workers comp injuries are resolved under the old
(pre-July 1, 2014) versus the new (post-July 1, 2014) law; youll get an update on the
latest rulings from the Workers Compensation Appeals Panels, the Workers
Compensation Appeals Board, and the Court of Workers Compensation Claims; youll
hear from Bureau of Workers Compensation representatives on the employer penalty
process, Drug Formulary, pain management rules, and the ombudsman/mediation
program; and youll also get up to date on complex issues, such as Medicare set-asides,
handling disputes over an employees future medical benefits, new pain management
rules, hot topics from the plaintiffs perspective, and ethical issues arising under the
new law.

For more information or to register call us at (800) 274-6774 or visit


www.mleesmith.com/tn-workers-comp
************************************************************

Law Conference for Tennessee Practitioners


WHEN: Thursday & Friday, November 17-18
WHERE: Nashville Nashville School of Law
CLE: Earn up to 15 hours of CLE (12 GENERAL and 3 DUAL)
FACULTY: Judge Frank Clement, Court of Appeals, Middle Section; Judge
Thomas R. Frierson, II, Court of Appeals, Eastern Section; Judge W. Neil Thomas,
III, Circuit Court, Hamilton County; Chancellor Ellen Hobbs Lyle, Chancery Court,
Davidson County; Brandon Bass, Law Offices of John Day, PC; Harlan Dodson,
Dodson, Parker, Behm & Capparella, PC; Sandy Garrett, Chief Disciplinary Counsel,
Board of Professional Responsibility; John J. Hollins, Jr., Thompson Burton PLLC;

Helen Rogers, Rogers, Kamm & Shea; Kara E. Shea, Butler Snow LLP; Tom Shaw,
Assistant General Counsel, Corrections Corporation of America; W. Russell Taber, III,
Riley Warnock & Jacobson, PLC; Wesley D. Turner, Gullett Sanford Robinson &
Martin PLLC; Chris Vrettos, Gideon, Cooper & Essary PLC; and Clifford Wilson,
Howard Tate Sowell Wilson Leathers & Johnson, PLLC.

HIGHLIGHTS: Get an overview from Chancellor Ellen Hobbs Lyle about the
practice and procedures in the states new business court; get up to date on the latest
developments in the areas of personal injury, family law, and real estate; get practice
pointers from Hamilton County Circuit Judge Neil Thomas on oral and written skills to
use in filing and presenting various pretrial motions; learn the ins and outs of appellate
practice and procedure and the deferential abuse of discretion standard of review from
Court of Appeals Judge Frank Clement; get tips and strategies on advising your clients
about the time overtime procedure, which is set to take effect on December 1; learn how
to use websites and social media to promote yourself and your law practice; get an
insiders perspective from the Chief Disciplinary Counsel on the Boards recent
developments; gain insight from Court of Appeals Judge Thomas Frierson on accepting,
terminating, or declining representation.

IN THIS WEEKS TAM-Bytes


Court of Appeals rules Knoxville Area Transit, Inc. (KAT) was not
liable in suit under Governmental Tort Liability Act in case in which
plaintiff fractured her ankle when she fell exiting T-Access bus owned
by KAT;
Court of Appeals, in Governmental Tort Liability Act suit by plaintiff
who allegedly fell into uncovered water meter in sidewalk, affirms
summary judgment dismissing any claim arising from defective or
dangerous condition, but remands case for consideration of claim
regarding allegedly negligent design and installation of water meter
covers;
Court of Appeals says trial court did not err by classifying parties
account that contained funds wife had inherited from her father as
wifes separate property that had not been transmuted when wife
testified that her intent in jointly titling account was to avoid certain
estate planning pitfalls, and not to gift account to marital estate;
Court of Criminal Appeals affirms aggravated burglary conviction
when defendant exercised control over residential property owned by
bank for several days by breaking into front door of home;
Court of Criminal Appeals affirms grant of defendants motion to
suppress his statement to police based on fact that statement was not
voluntarily given when trial court found that officers conduct

could and would have been overbearing psychologically on


[defendant]; and
Court of Workers Comp Claims, in case in which professional
employer organization (PEO) entered into Client Agreement to
provide employee benefit services for company that performs work
upgrading cell phone towers, rules PEO was co-employer, but because
PEOs proportion of wage liability was zero, PEO had no workers
comp liability for death of cell phone tower technician in work
accident.

COURT OF APPEALS
TORTS: When plaintiff, student at University of Tennessee at Knoxville
(UT), due to knee injury, had restricted mobility and needed assistance to get
around UT campus, through agreement with Knoxville-Area Transit, Inc.
(KAT), UT provided on-campus transportation for students with mobility
restrictions on bus called T-Access, plaintiff obtained pass to ride on TAccess bus, and, as she took her first step off of bus and onto pavement on
8/17/11, plaintiff fell and fractured her right ankle, and plaintiff filed suit
under Governmental Tort Liability Act against KAT, trial courts award of
damages in favor of plaintiff is reversed; video introduced at trial does not
support trial courts finding that bus was moving as plaintiff exited; trial
court did not err in failing to find that driver dropped plaintiff off in unsafe
location when evidence introduced at trial to demonstrate that side entrance
of plaintiffs designation was more dangerous than main entrance focused
largely on relative ease with which mobility impaired person would be able
to enter building after being dropped off, there was no evidence to suggest
that incline or landscaping around side entrance contributed to employees
fall, and plaintiff was dropped off as close to her requested destination as
possible. Peters-Asbury v. Knoxville Area Transit Inc., 8/8/16, Knoxville,
Goldin, 9 pages.
http://www.tncourts.gov/sites/default/files/peters-asbury_et_al_v_knoxville_area_transit_inc_opinion_e2015-01816.pdf

TORTS: In suit under Governmental Tort Liability Act by plaintiff, who


alleged that he was injured when he fell into uncovered water meter in
sidewalk, trial court did not err in granting summary judgment to Memphis
Light, Gas, and Water (MLGW) for any claim arising from defective or
dangerous condition under TCA 29-20-203 and 29-20-204 when plaintiff
failed to present specific evidence that cover of particular water meter or
others in same approximate location were being removed in such a
frequent fashion as to qualify as common occurrence, and when there was

no evidence in record to support either actual or constructive notice to


MLGW of allegedly dangerous condition of this particular water meter; trial
courts order does not appear to address plaintiffs argument that MLGWs
choice of covers for water meters and their placement were negligent, and
appropriate remedy is to vacate trial courts judgment insofar as it dismissed
any claim under TCA 29-20-205 regarding allegedly negligent design and
installation of MLGW water meter covers for further consideration,
including whether MLGWs decision to install water meter covers at issue
constitutes discretionary function. Fowler v. City of Memphis, 8/11/16,
Jackson, Stafford, 14 pages.
http://www.tncourts.gov/sites/default/files/fowlercopn.pdf

FAMILY LAW: In case in which child was born in 11/06 but lived most of
his life with paternal grandmother, evidence preponderated against trial
courts termination of mothers parental rights to child when no clear and
convincing evidence was presented in support of either ground for
termination relied upon by trial court; evidence did not support termination
of mothers parental rights on ground of abandonment by willful failure to
support when mother was released from jail approximately three weeks
before beginning of relevant four-month period, support mother paid
grandmother during four-month period was more than token, mothers sole
source of income during relevant time period came from her boyfriend,
grandmother presented no proof regarding income of mothers boyfriend,
and mother was receiving food stamps; evidence did not support termination
of mothers parental rights on ground of persistence of conditions when
there was no prior order removing child from parents home or custody
based on judicial finding of dependency, neglect, or abuse essential
prerequisite to establishing ground of persistence of conditions. In re Ryder
R., 8/5/16, Nashville, McBrayer, 11 pages.
http://www.tncourts.gov/sites/default/files/inreryderr.opn_.pdf

FAMILY LAW: Trial court, in divorce case, did not err by classifying
parties Wells Fargo account (Account) that contained funds wife had
inherited from her father as wifes separate property that had not been
transmuted when wife testified that her intent in jointly titling Account was to
avoid certain estate planning pitfalls, and not to gift Account to marital estate,
husband had no involvement with Account other than being listed on it,
husband never participated in any management of funds and did not utilize
funds for any reason, and wifes occasional use of funds from Account for her
family was insufficient to demonstrate that she intended for Account to be gift
to marital estate. Douglas v. Douglas, 8/8/16, Jackson, Stafford, 7 pages.
http://www.tncourts.gov/sites/default/files/douglasropn.pdf

FAMILY LAW: In case in which mother, at time of divorce in 5/07, was


designated primary residential parent of parties 2.5-year-old child, in 11/10,
parties announced interim agreement that changed childs placement from
mother to maternal grandmother, under agreement, grandmother was given
full physical custody of child, with legal custody to be split between the
parties, mother did not waive any of her parental rights under agreement,
order provided that case would be transferred to Montgomery County (from
Knox County) for all future purposes, and mother subsequently filed motion
in Montgomery County seeking to regain custody of child, evidence did not
preponderate against trial courts determination that grandmother did not
meet her burden of proof by showing clear and convincing evidence that
substantial harm will come to child if returned to mother; much of
grandmothers evidence offered in support of proving threat of substantial
harm focused on mothers prior employment history, residential history, and
struggles with her mental health, but parents past conduct must be measured
against parents improvement and present ability to care for his or her child,
and mothers circumstances at time of trial pointed toward positive future
she was employed, had stable housing, and expressed desire to continue
working with her therapist to cope with her depression. Bryan v. Miller,
8/8/16, Nashville, Goldin, 23 pages.
http://www.tncourts.gov/sites/default/files/bryan.ashli_.opn_.pdf

EVIDENCE: Trial court did not abuse discretion in either passing to jury or
in admitting into evidence exhibit, which was pictograph titled Incidence of
Ureteral Injury in Distal Colon Surgeries, which illustrates that relative
percentage of patients who suffer ureteral injury, when stenting is used
during surgery, is greater than when stenting is not used. Logian v. Morisy,
8/11/16, Jackson, Armstrong, 9 pages.
http://www.tncourts.gov/sites/default/files/logianjamiopn.pdf

COURT OF CRIMINAL APPEALS


CRIMINAL LAW: Evidence was sufficient to convict defendant of theft
over $250,000 and aggravated burglary when defendant, for several days in
3/13, exercised control over residential property owned by bank by breaking
into front door of home, property had been appraised at value of $3 million
and eventually sold for $2.4 million, defendant entered property without
permission of owner, defendant barred entry of lawful owner to property by
chaining front gate, and she placed signage around property indicating her
seizure of land; term property, as used in theft statute, includes real

property as well as personal property. State v. Gentry, 8/12/16, Jackson,


Wedemeyer, 12 pages.
http://www.tncourts.gov/sites/default/files/gentrytopn_0.pdf

CRIMINAL PROCEDURE: In case in which defendant pled guilty to DUI,


officers had probable cause to stop his vehicle when defendant violated City
of Murfreesboro (City) ordinance by failing to use his turn signal; language
of City ordinance is clear that drivers are required to use turn signals when
making turn. State v. Rollins, 8/10/16, Nashville, Witt, 5 pages.
http://www.tncourts.gov/sites/default/files/rollinsmarkopn.pdf

CRIMINAL PROCEDURE: In murder case, trial judge properly granted


defendants motion to suppress his statement to police based on fact that
statement was not voluntarily given defendant was informed by police that
he had been brought in solely for brief polygraph examination, officer told
defendant that she would testify at trial as expert witness that defendant was
not telling truth, trial court found that representation by officer was pretty
stout hammer held over defendants head, both law enforcement officers
confronted defendant at same time with questions, even after repeated
denials by defendant, and trial court found that this conduct and other
conduct by officers could and would have been overbearing
psychologically on this Defendant. State v. Kinnie, 8/5/16, Jackson,
Woodall, 8 pages.
http://www.tncourts.gov/sites/default/files/kinnieterronopn.pdf

TRIAL COURTS
CIVIL PROCEDURE: In suit filed by importer, distributor, and wholesaler
of new Nissan motor vehicles and related and accessory parts through
United States against Nissan Dealership LLC (defendant LLC) located in
California and its agent and employees who perform warranty and customerpaid maintenance and service on Nissan vehicles, defendant LLCs motion
to dismiss for lack of personal jurisdiction is denied; alleged deception,
misleading, and fraudulent submission of warranty claims for period of
months with defendant LLC obtaining payments from Tennessee furthered
business of LLC, while creating continuous consequences in Tennessee, and
quality of these contacts is sufficient for finding purposeful availment in
Tennessee; exercise of jurisdiction over defendant LLC in this case in
Tennessee is reasonable and fair. Nissan North America Inc. v. Tustin
Import Auto Sales LLC, 6/8/16, Davidson Chancery, Lyle, 22 pages.
https://www.tncourts.gov/node/4306280

COURT OF WORKERS COMP CLAIMS


WORKERS COMPENSATION: When Central USA, company that
performs work upgrading cell phone towers, and HUMACare, Inc.,
professional employer organization, entered into Client Agreement for one
year in which HUMACare agreed to provide human capital management and
employee benefit services to Central USA, Central USA hired employee as
cell phone tower maintenance technician, employee climbed portion of cell
tower for Central USA on 12/18/14 and fell to his death, and his widow
sought to recover death benefits, HUMACare was co-employer of employee;
HUMACare asserted that it had no liability for workers compensation
because of its contract with Central USA, but employer cannot contract
away its obligation to provide benefits under Workers Compensation Law;
Workers Compensation Law assigns co-employers liability in proportion
to their wage liability; as cell phone tower technician, employee performed
services only for Central USA, who alone controlled employees work,
jobsites he worked, and wages he received; HUMACare bore no wage
liability to employee as it simply passed employees wages from Central
USA to him as part of its services pursuant to Client Agreement;
HUMACares proportion of wage liability was zero, and hence, it has no
liability for death benefits to widow. Cotton v. HUMACare Inc., 3/24/16,
Kingsport, Addington, 10 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1372&context=utk_workerscomp

WORKERS COMPENSATION: When worker stopped by job site, spoke


with brick mason whom general contractor engaged to perform brick work at
site, brick mason informed worker that he needed masons helper, whose job
it was to make mud (mortar), transport bricks to brick masons, and
erect/tear down scaffolding, worker agreed to work in that capacity at $12
per hour, and worker was injured as result of fall from scaffold board,
worker was independent contractor, not masons employee, under
circumstances worker brought his own tools for job and required no
instruction on how to accomplish his work, worker was free to set his own
work hours and could come and go as he pleased, brick mason did not keep
track of workers hours, and worker would tell brick mason how many hours
he worked and was paid their agreed hourly rate. Hartley v. Hammons,
3/18/16, Kingsport, Addington, 12 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1366&context=utk_workerscomp

WORKERS COMPENSATION: When employee, production operator,


slipped and fell, injuring her left knee on 8/13/14, MRI on 12/5/14 revealed

tear of meniscus, doctor recommended surgery, but, at pre-surgery workup,


employee discovered she was pregnant, employee was unable to proceed
with surgery and unable to take anti-inflammatory medication, doctor
assigned restrictions, and although employer was unable to accommodate
those restrictions, it refused to pay temporary disability benefits, employee
came forward with sufficient evidence from which to conclude that she is
likely to prevail at hearing on merits in proving that workplace accident,
rather than her pregnancy, resulted in imposition of restrictions that inhibited
her ability to return to work; her requests for temporary disability benefits
from 5/6/15 through 12/22/15 are granted. Moffitt v. Takahata Precisions,
3/21/16, Knoxville, Knott, 10 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1368&context=utk_workerscomp

WORKERS COMPENSATION: Assault of employee by two co-workers


fell into category of assaults with inherent connection to employment when
employee credibly testified that co-workers motivation for assault related to
their anger over employees elevation to permanent employment; coworkers characterization of assault as personal and private due to use of
racial epithets is unpersuasive because dispute originated from employees
elevation to permanent employment rather than use of racial slurs; employee
came forward with sufficient evidence from which to conclude that he is
likely to prevail at hearing on merits regarding compensability of his injuries.
Harris v. Bennett Tool & Die LLC, 3/24/16, Nashville, Switzer, 12 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1369&context=utk_workerscomp

If you would like a copy of the full text of any of these opinions, simply
click on the link provided or, if no link is provided, you may respond to
this e-mail or call us at (615) 661-0248 in order to request a copy. You
may also view and download the full text of any state appellate court
decision by accessing the states web site by clicking here:
http://www.tncourts.gov